Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 87317-2-I Petitioner, DIVISION ONE v. UNPUBLISHED OPINION BRANDON ANTHONY DEUTSCH, Respondent. BIRK, J. — Brandon Deutsch was convicted of driving while license suspended/revoked in the second degree following a bench trial in the district court. The State seeks discretionary review of the superior court’s decision reversing Deutsch’s conviction after it concluded that the State failed to supply adequate evidence it mailed Deutsch’s letter of revocation. We affirm the superior court. I By letter dated January 4, 2017, the Department of Licensing purportedly sent Deutsch a notice that his driver’s license would be suspended because of a citation for following too close on September 19, 2016. The letter stated the suspension of Deutsch’s license would begin on February 18, 2017, for his failure “to respond, appear, pay, or comply with the terms” of his citation. The letter indicated Deutsch needed to contact the King County District Court to “take care” of the citation. The letter said that if Deutsch did not “resolve it,” his driving privilege No. 87317-2-I/2 would be suspended. The letter contained the following certification: “The Department of Licensing certifies that this document was mailed via U.S. post office on 01/04/2017 to the person named herein at the address shown which is the last address of record with the Department.” On October 1, 2018, Deutsch was arrested for driving “or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor and/or drugs.” Deutsch’s driving under the influence (DUI) arrest report showed an initial blood alcohol concentration reading of 0.111. By letter dated October 8, 2018, the Department of Licensing purportedly issued a notice of revocation to Deutsch to revoke his driving privileges beginning on November 30, 2018, “for being in physical control of a motor vehicle or driving under the influence of alcohol and/or any drug.” The letter provided, “If nothing else on your driving record prevents it, you will be eligible to get a license on 30- Nov-2020.” This letter contained a similar certification at the bottom of the page stating, “The Department of Licensing certifies that this document was mailed via U.S. post office on 08-Oct-2018 to the person named herein at the address shown. Which is the last known address of record with the Department.” On July 24, 2019, a deputy sheriff stopped Deutsch because of a broken taillight. The deputy sheriff’s search of Deutsch’s records revealed a misdemeanor warrant for driving while license suspended in the second degree and operating a vehicle without an ignition lock device. By criminal complaint filed on February 24, 2020, the State charged Deutsch with driving while license suspended/revoked in the second degree, in 2 No. 87317-2-I/3 violation of RCW 46.20.342(1)(b), for operating a vehicle on July 24, 2019, a period during which he was not eligible to reinstate his driver’s license or driving privilege. A On February 1, 2023, Deutsch moved to dismiss the charge of driving while license suspended in the second degree and argued the suspension was void because “the State cannot prove [the Department of Licensing] complied with due process by mailing the defendant a letter notifying them of the pending license suspension.” (Boldface omitted.) At a motion hearing on February 13, 2023, Johnna Carlo, a custodian of records at the Department of Licensing and John Miller, the mail operations manager for Consolidated Mail Services, both testified for the State. Carlo testified that she had been employed by the Department of Licensing for five years and had served as the custodian of records for one year. She testified to her general knowledge of office customs of mailing letters to notify people that their license is being suspended or revoked. Carlo testified that the Department of Licensing creates these notices and another entity is responsible for physically printing and transporting the letters to the post office. First, when the department gets information that a license needs to be revoked, customer service specialists in record documentation enter the suspension or revocation information into their system. Second, Carlo testified that the record entry creates an electronic notice of suspension or revocation file, and that file is automatically transmitted overnight to Consolidated Mail Services. The certification statements at the bottom of letters are added to the letters at the time the letters are created. For Deutsch’s notice of 3 No. 87317-2-I/4 revocation letter dated October 8, 2018, Carlo testified the letter could have been created the day before if it was not a weekend. John Miller testified to Consolidated Mail Services’ role in the mailing process after the letters are printed by the print department. He testified that the process begins with freight drivers from Consolidated Mail Services stopping at the print department to pick up boxes of printed mail and transporting them to Consolidated Mail Services. Miller viewed the print department as part of the Department of Enterprise Services. These freight drivers carry printed letters to the insert section. The insert section of Consolidated Mail Services has two shifts. A supervisor and a coordinator are present at each shift. Miller testified that once printed materials arrive in boxes at the insert section, either the supervisor or coordinator will sort the materials according to the banner page. The banner pages are created and printed by the print operator, and they inform Consolidated Mail Services about the type of materials, such as suspension notices, contained in the box. Miller testified that Consolidated Mail Services prints out a job ticket for every batch of print materials. Job tickets contain detailed information about the printed materials, including quality control checks, the account from which prepaid postage will be used, the amount of time that Consolidated Mail Services has between receiving the print and sending it to the United States Postal Service, and the location of the envelopes to be used. Either the supervisor or coordinator will retrieve envelopes stored at warehouses for print jobs. The information contained on the job ticket is used to program the insert machine. The supervisor or 4 No. 87317-2-I/5 coordinator also signs off on the envelopes, that they brought the job to a specific machine and placed the correct envelopes in the machine. Then, the supervisor or coordinator will set up the insert machine using the job ticket. Before the entire print job goes through the insert machine, an operator inserts the first piece of mail from the print job to check that the mail looks correct and signs the job ticket verifying that the mail looks correct with the right address and date. Then, a second operator checks that first piece of mail and signs off if the mail looks correct. Next, all mail pieces of the print job are placed in the inserter machine, which folds the pieces, inserts them into an envelope, seals the envelope, and adds pre- paid postage to the envelope. When the machine is done, the operator confirms that the mail count matches the count shown on the job ticket. After an operator confirms the mail count matches the job ticket, staff take the letters to the presort section. A machine reads the address on the mail, adds an Intelligent Mail barcode to the envelope, and sorts the mail in zip code order. Staff members bundle the presorted mail into trays, and the trays are placed in large containers to take to the post office. Miller testified to the safeguards in place at Consolidated Mail Services to ensure accurate mail count. In addition to the bar code, every piece of mail has a sequence number, and if there are multiple pages, there is also a page number. These safeguards were in place starting in September 2018.1 1 Unlike the letter purportedly sent to Deutsch in 2017, the letter purportedly sent in 2018 included an additional apparent identifier, “Letter ID: L0048157238.” 5 No. 87317-2-I/6 Miller testified that Consolidated Mail Services does not keep a complete record of every staff member who worked on a certain print job, but it keeps records of the staff running the print job through the insert machine, and these records exist on job tickets, which are kept for up to seven years. Even so, the job ticket is not associated with a list of people to whom the letters were addressed. When asked if Consolidated Mail Services maintain records of individuals who pick up the letters to deliver to the post office, Miller stated, “So, yeah, we don’t necessarily keep any records. You could look up maybe who was on the freight route on a particular day.” Consolidated Mail Services does not have a record showing Deutsch’s letter was mailed. Miller believed that he could review the job ticket to check if mailing procedures were followed on the day that Deutsch’s letter was purportedly mailed. B The district court denied Deutsch’s motion to dismiss and concluded that the State met its burden and established that the Department of Licensing complied with RCW 46.20.245, and that the State presented specific evidence of the mailing custom used by the Department of Licensing. The court reasoned that witnesses testified to each part of the mailing process, and there was testimony about systematic safeguards to ensure accuracy. The parties entered a stipulation for a bench trial on agreed documentary evidence. The stipulated evidence included documents contained in “Appendix A” to the stipulation, which included the 2017 and 2018 letters purportedly mailed to Deutsch. The district court found Deutsch guilty of driving while license suspended/revoked in the second degree. 6 No. 87317-2-I/7 C Following his guilty verdict, Deutsch sought review by the Snohomish County Superior Court of the decision rendered in the Snohomish County District Court. Deutsch argued “the State [f]ailed to [p[rove that the [g]overnment [c]omplied with [d]ue [p]rocess [w]hen it [r]evoked Mr. Deutsch’s [l]icense.” The superior court reversed Deutsch’s conviction and remanded the case to be dismissed with prejudice. The superior court held substantial evidence supported the conclusion that a mailing custom existed. However, the State failed to show evidence, based on personal knowledge, that the Department of Licensing, Department of Enterprise Services, or Consolidated Mail Services complied with their mailing customs with regards to Deutsch’s mail. The superior court reasoned the employees who testified were not involved in the mailing process on the day in question. Additionally, the certification statement at the bottom of the revocation notice was insufficient to prove that mailing customs were followed in the specific instance. Furthermore, even though Consolidated Mail Services receives a print job and maintains a job ticket, neither of those documents were produced. The superior court concluded that substantial evidence did not support the district court’s determination that the Department of Licensing and Consolidated Mail Services properly mailed Deutsch’s notice as required by statute. II A We review challenges to conclusions of law de novo. State v. Roberts, 5 Wn.3d 222, 237, 572 P.3d 1191 (2025). We defer to the trier of fact on issues of 7 No. 87317-2-I/8 conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Id. at 234. In a criminal prosecution, “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.” Id. at 230- 31 (alteration in original) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). The purpose of a sufficiency of evidence inquiry is to “ ‘ensure that the trial court fact finder rationally appl[ied] the constitutional standard required by the due process clause of the Fourteenth Amendment [to the United States Constitution], which allows for conviction of a criminal offense only upon proof beyond a reasonable doubt.’ ” Id. at 231 (alterations in original) (internal quotation marks omitted) (quoting State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014)). We review findings of fact for sufficiency of the evidence, and the conviction will be upheld if any rational fact finder could have found the essential elements beyond a reasonable doubt. Roberts, 5 Wn.3d at 237. RCW 46.20.342(1) provides in part, “It is unlawful for any person to drive a motor vehicle in this state while that person is in a suspended or revoked status or when his or her privilege to drive is suspended or revoked in this or any other state.” RCW 46.20.342 (1)(b) provides, A person who violates this section while an order of suspension or revocation prohibiting such operation is in effect and while the person is not eligible to reinstate his or her driver's license or driving privilege, other than for a suspension for the reasons described in (c) of this subsection, is guilty of driving while license suspended or revoked in the second degree, a gross misdemeanor 8 No. 87317-2-I/9 The process provided to those subject to mandatory revocation mandates that the Department of Licensing “must give notice to the person in writing by posting in the United States mail, appropriately addressed, postage prepaid, or by personal service. Notice by mail is given upon deposit in the United States mail.” RCW 46.20.245(1). The Supreme Court acknowledged the alternate means of establishing proof of mailing by office custom in Farrow v. Department of Labor & Industries: Obviously, in an office handling as much correspondence as does the Department of Labor and Industries, no one can remember the fact of mailing any particular notice or letter. So the law has become well established in such instances that [proof] of mailing may be made by showing (a) an office custom with respect to mailing; (b) compliance with the custom in the specific instance. 179 Wash. 453, 455, 38 P.2d 240 (1934). Deutsch challenges whether the State’s evidence satisfied prong (b) under Farrow. B The statements on the face of the 2017 and 2018 letters that they were mailed are insufficient under Farrow. See Scheeler v. Dep’t of Emp’t Sec., 122 Wn. App. 484, 489-90, 93 P.3d 965 (2004) (holding that language on the letter stating that the letter was mailed is insufficient to establish that the letter was properly sealed, stamped, and deposited in the U.S. mail on that date because the notation may have been typed before the letter was purportedly mailed). In Farrow, the court held that the State proved a custom existed, but it failed to produce proof of compliance with the custom. 179 Wash. at 455. The court reasoned that a custom was established because the court learned about different 9 No. 87317-2-I/10 mail processes, but because the mailing clerk whose job was described by the mail custom was not produced as a witness, there was no evidence of compliance with the custom. Id. Here, although the State established that a mailing custom exists through the testimony of Carlo and Miller, the State failed to show the Department of Licensing complied with that custom with respect to the letters addressed to Deutsch. Carlo testified to the general process of letter generation and electronic transfer of the file to Consolidated Mail Services or the print department for printing. From there, Miller explained the steps involved after receiving the physical mail from the print department until the mail, properly addressed with prepaid postage, is off to the post office. This testimony was adequate to establish the existence of a mailing custom. However, neither Carlo nor Miller could testify whether the custom was followed for Deutsch’s letter when it was purportedly sent. Carlo was not the custodian of records at the time Deutsch’s letter would have been created by the Department of Licensing. Miller had awareness of how the systems at Consolidated Mail Services were supposed to work. Miller testified that even though job tickets contain significant information to the print job, the ticket was not associated with a list of people to whom the letters were addressed. Furthermore, Miller testified that Consolidated Mail Services did not “necessarily keep any records.” At oral argument, the State pointed to Miller’s testimony to show Consolidated Mail Services followed its mailing customs. Wash. Ct. of Appeals oral arg., State v. Deutsch, No, 87317-2-I (Sep. 22, 2026), at 06 min., 23 sec. to 10 No. 87317-2-I/11 06 min., 35 sec., audio recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2026091217/. This testimony indicated Miller had previously looked up suspension notices, and on those occasions, he did not see any errors with the mailing system. Miller testified that Consolidated Mail Services does not have any records of a notice of suspension or revocation being lost or mixed up, but he never testified there was reason to know that Deutsch’s letter was sent without error. More problematically, his testimony that he had looked up other suspension notices, if anything, suggested he had never looked up Deutsch’s. The evidence was not adequate to support the finding that the Department of Licensing followed the mailing custom on October 8, 2018. The State argues that personal knowledge is required to establish the existence of a custom but should be deemed unnecessary once the custom has been established. We disagree with the State’s premise that the issue turns on whether the State presents a witness with specific personal knowledge of a given piece of correspondence, and the conclusion the State draws that this is therefore too much to require.2 The State asserts “[m]ultiple jurisdictions have already 2 Contrary to the State’s assertion that compliance with Farrow necessarily requires “personal knowledge gleaned from actual interaction with an individual letter,” Washington case law has not said this. For instance, under RCW 5.45.020: A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. 11 No. 87317-2-I/12 recognized that personal knowledge is only necessary to establish the existence of a custom, without it being necessary to establish compliance with that custom for a particular mailing,” and cites cases decided outside of Washington. Those cases do not support the State’s assertions. The State cites J.I. Case Co. v. Sinning Bros. Motor. Co., 137 Kan. 581, 582-83, 21 P.2d 328 (1933), but notice was not an element of a claim in J.I. Case. Instead, the plaintiff manufacturer sought to prove that the defendant dealer had known of the list price of two combines when it sold them for less than the list price. Id. at 582. The plaintiff offered evidence consisting of a witness who said that the price list “was mailed to all of our dealers.” Id. at 583. The court said this was sufficient evidence to sustain the judgment in favor of plaintiff on the question of the defendant’s knowledge of the list price. Id. But mailing itself was not the issue—rather, the defendant’s knowledge was. The court in J.I. Case never purported to make a general rule about how to prove mailing where, as here, mailing is a required element of proof. Rather, at most the court said that testimony that the plaintiff had mailed its list to all of its dealers was some evidence that it had done so. Notably, without deciding whether similar testimony would meet the State’s burden here, the State never presented similar testimony. No witness in this case The statute’s purpose “ ‘is to permit the admission in evidence of systematically entered records made in the usual course of business without the necessity of identifying, locating[,] and producing as witnesses each individual who made the original entries in the records.’ ” Bavand v. OneWest Bank, FSB, 196 Wn. App. 813, 826, 385 P.3d 233 (2016) (alteration in original) (quoting City of Seattle v. Heath, 10 Wn. App. 949, 955, 520 P.2d 1392 (1974)). No particular mode or record form is required. Id. at 826. 12 No. 87317-2-I/13 ever testified to the effect that all letters such as Deutsch’s were in fact mailed based on any reason to believe such to be true. Rather, the State’s evidence amounted to no more than describing the system it had in place. There was no evidence—not even the kind of statement present in J.I. Case—that mailing to Deutsch in fact occurred based on any rationale to believe it to be true. The State cites Mohr v. Universal C.I.T. Credit Corp., 216 Md. 197, 204, 140 A.2d 49(1958), which described a minority rule that “[p]roof of the custom may be established simply by proving the existence of a system of addressing and mailing, and that it was the invariable office practice to comply with such system.” Even under this minority rule, proof of the custom was required to include some evidence that “it was the invariable office practice to comply with such system.” Id. That is analogous to some evidence that the system was in fact followed. In this case, although the State proved a system, it offered no evidence of the second step, that the system was “invariably” or in fact followed in Deutsch’s case. The State cites Campbell v. Royal Indemnity Co. of New York, 256 Pa. Super. 312, 320, 389 A.2d 1139 (1978), in which the insurance cancellation letter was offered under the business record hearsay exception under a Pennsylvania statute3 apparently identical to RCW 5.45.020. In this context, the court said that 3 The statute stated, in pertinent part, “A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the 13 No. 87317-2-I/14 a witness familiar with the customary procedures of the company could provide the foundation required under the statute. Id. at 320. Here, however, the State never offered the letters and proof of following its mailing custom under the business record statute and does not contend on appeal that that statute aids in establishing the fact of mailing. We must follow Farrow. A decision by the Washington Supreme Court is binding on all lower courts in the state. 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423 (2006). But even were it not so, the State’s cases do not support a rule under which the State’s evidence in this case would have sufficed to establish mailing and also do not support eliminating Farrow’s second element requiring, to prove mailing, some evidence that a mailing custom was followed for the specific correspondence at issue. We affirm the superior court’s order reversing the conviction and remand to the district court with instructions to dismiss the charge of driving while license suspended/revoked in the second degree with prejudice. WE CONCUR: court, the sources of information, method and time of preparation were such as to justify its admission.” Campbell, Pa. Super. at 319 (quoting Pa. Cons. Stat. § 91b (1958)). 14